UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3257
DIC-UNDERHILL, A JOINT VENTURE,
Respondent.

March 31, 1976

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

The decision of Administrative Law Judge Jerome C. Ditore, rendered March 11, 1974, is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter ‘the Act’]. The respondent employer petitioned for review, and orders for review were issued concerning essentially the issue of perimeter guarding. The case has been briefed by both parties.

On April 11, 1973, respondent, a joint venture, was engaged in the construction of an apartment building in New York City. On that date, respondent’s worksite was inspected by an OSHA compliance officer. As a result of this inspection, a citation was issued alleging four violations of occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 of the Act.

Respondent contested only the first two items of this citation. Item #1 alleged a violation of 29 CFR § 1926.500(d)(1)[1] for failing to guard open-sided floors on the first, second, and third floor levels of the building under construction. At the hearing the Secretary withdrew the alleged violation of this standard in regards to the third floor level. Item #2 alleged a violation of 29 CFR § 1926.25(a)[2] for failure to keep the work area clear of scrap lumber and other debris.

The record in this case was established solely by the testimony of the compliance officer. Respondent presented no witnesses nor any other evidence in its behalf, limiting its participation in the hearing to cross-examination of the Secretary’s witness.

The Judge affirmed the citation for violation of 29 CFR § 1926.25(a). We have reviewed the entire record, and conclude that his determination on this issue was correct. We therefore adopt his findings and conclusions with respect thereto and affirm the finding of a violation of 29 CFR § 1926.25(a). As to the citation for violation of 29 CFR § 1926.500(d)(1), however, the Judge found that a violation existed on only the second floor level of construction. He vacated that part of the citation that charged a violation on the first floor level.

For the reasons that follow, we hold that the Judge erred in vacating that part of the citation charging a violation of 29 CFR § 1926.500(d)(1) at the first floor level. We find that respondent was in violation of that standard at both the first and second levels of the construction site in issue. The Judge’s decision is therefore modified insofar as it is necessary to reflect our holding in this regard.

As a preliminary matter, we must answer respondent’s argument that the standard at 29 CFR § 1926.500(d)(1) is not applicable to the work being performed by respondent at the time of the inspection in this case. Respondent, as concrete subcontractor, was responsible for the performance of the concrete work on the project, which work included the building of forms, the pouring of concrete, and the stripping of these forms for each floor of the building and the columns supporting these floors.

Briefly stated, respondent’s argument is as follows: Structural concrete construction activity is specifically covered in Subpart Q of 29 CFR Part 1926 and the specific standards contained therein; Subpart Q does not require perimeter protection; therefore, the general standard requiring perimeter protection found in Subpart M at 29 CFR § 1926.500(d)(1) does not apply.

The identical argument was made by this respondent and rejected by the Commission in Dic-Underhill, No. 3725 (October 16, 1975). As we did in that case, we herein adopt Judge Ditore’s resolution of this issue and hold that 29 CFR § 1926.500(d)(1) is applicable to the structural concrete construction work engaged in by respondent.

Turning to the alleged violation of 29 CFR § 1926.500(d)(1) on the first floor level, we find the following unrefuted facts: The open-sided floor on this level was unguarded; the drop from this opensided floor to ground level was greater than six feet; two of respondent’s employees were operating a power saw on this level approximately ten feet from the edge of the open-sided floor.

Based on these facts, there can be no doubt that respondent was in violation of the standard in view of the holding in Brennan v. O.S.H.R.C. and Underhill Constr. Co., 513 F.2d 1032 (2d Cir. 1975). In that case the Court held that where an employer is in control of an area and responsible for its maintenance, to prove a violation of the Act the Secretary ‘need only show that a hazard has been committed and that the area of the hazard was accessible to the employees of the cited employer . . .’ 513 F.2d at 1038. The existence of a hazard is established by the fact that the standard was not complied with, i.e., there were no guardrails on this open-sided floor which was more than six feet above ground level.

That respondent was in control of this area at the time of this violation is not disputed. Also exposure of respondent’s employees to this hazardous condition is clearly established by the fact that two employees were working on this level ten feet from the unguarded edge. See, Underhill Constr. Co., supra, 513 F.2d at 1039.

The Judge’s finding that these two employees were not exposed to this hazard is, therefore, hereby expressly overruled. We add parenthetically that the standard does not rigidly require the use of standard railings. An equivalent form of structural protection is expressly contemplated by its terms. Warnel Corp., No. 4537 (March 31, 1976). Moreover, the employer may pursue the use of additional forms of equivalent protection for its employees under the variance procedure provided in section 6(d) of the Act.

Each of the violations charged in the citation were classified as not ‘serious’ for penalty purposes. The Judge gave due consideration to the factors specified in section 17(j) of the Act in determining an appropriate penalty. The violation of 29 CFR § 1926.25(a) was found to be of average gravity and a penalty of $45 was assessed. We affirm that assessment. The violation of 29 CFR § 1926.500(d)(1) was found to be more grave. We agree, and affirm the Judge’s penalty assessment of $200 for the violation.

It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: MAR 31, 1976

MORAN, Commissioner, Dissenting:

With this decision, the Commission promulgates a new rule under which cited employers will henceforth be presumed guilty until they can prove themselves innocent. Commissioner Cleary has long maintained that when an inspector cites an employer because the requirements of some safety standard are not being observed, the establishment of that fact is sufficient to convict the cited employer unless he can prove that no employee could be hurt as a result of that noncompliance. See e.g., Secretary v. Bechtel Corporation, 12 OSAHRC 774, 778 (1974); Secretary v. W. B. Meredith II, Inc., 9 OSAHRC 245, 248 n.2 (1974); Secretary v. J. E. Roupp & Company, 7 OSAHRC 919, 926 (1974).

Until this decision none of the Judges and no other member of this Commission has agreed with such a radical departure from the presumption-of-innocence doctrine that has been part of the very foundation of American jurisprudence for 200 years. Now, however, Mr. Barnako has joined hands with Mr. Cleary in a maneuver to shift the burden of proof from the Secretary of Labor to the cited employer. It appears as a single sentence in their decision in this case:

‘The existence of a hazard is established by the fact that the standard was not complied with . . ..’

Heretofore, the existence of a hazard had to be proved by evidence which established that an employee of a cited employer was exposed to danger as a result of noncompliance with the cited standard. see, e.g., Secretary v. Otis Elevator Co., 12 OSAHRC 127 (1974); Secretary v. Sletten Construction Co., 12 OSAHRC 40 (1974); Secretary v. Hawkins Construction Co., 8 OSAHRC 569 (1974). This new Barnako-Cleary rule will allow the Secretary of Labor to issue more citations for it will no longer be necessary for inspectors to collect evidence showing that one or more employees could be injured because of noncompliance with a standard—or even that there were any employees at the job site. The cited employer must prove such things as a defense. If he is unable to do so, the violation will be established.

I note that this shift in the burden of proof is not only contrary to American jurisprudence, but it is inconsistent with the purposes of this Act. The very purpose for the enactment of Federal job safety legislation was the reduction in work injuries and diseases. If no injury to employees can result from noncompliance with an occupational safety and health standard, then to issue citations in such cases is a waste of the time and resources which Congress—and the American taxpayers—have provided for accident-reduction (as distinguished from citation-issuance).

Both the Administrative Procedure Act (APA) and the Commission’s Rules of Procedure also are contrary to this Barnako-Cleary presumption-of-guilt rule. Congress provided in the Act that job-safety hearings shall be in accordance with the APA. 29 U.S.C. § 659(c). The APA specifies that:

. . . the proponent of a[n] . . . order has the burden of proof.’ 5 U.S.C. § 556(d).

The Secretary of Labor, of course, is the proponent in all cases before this Commission since he seeks an order upholding his citation and penalty proposals.

Rule 73(a) of the Commission’s Rules provides that

‘In all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Secretary [of Labor].’ 29 C.F.R. § 2200.73(a).

Both of the foregoing requirements, however, have been disregarded by Messrs. Barnako and Cleary.

It is my opinion that Judge Ditore correctly decided this case and his decision (which I herein incorporate by reference and attach hereto as Appendix A) should be affirmed in its entirety.[3] I therefore disagree with the Commission’s reversal of his holding that there was no failure to comply with the requirements of 29 C.F.R. § 1926.500(d)(1) on the first floor of the building.

In my dissenting opinion in Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976, I discussed at length the reasons for adhering to prior Commission precedent requiring complainant to show actual employee exposure. Although I will not repeat those reasons here, I will say that I am in full agreement with Judge Ditore’s application of that rule in his decision in this case.

My colleagues correctly note that the only evidence of employee exposure on the first floor was that two employees were operating a power saw about ten feet from the edge. The Judge considered this evidence and reasoned as follows:

‘When is an employee exposed to any given hazard is always a difficult question, and cannot be determined with any degree of precision. There are no devices or instruments which will indicate that an employee ten or more feet from a hazard is exposed to that hazard. An employee working at the edge or within two to five feet of an unguarded open-sided floor would no doubt be exposed to that hazard. But what is the outermost distance limits beyond which exposure no longer exists? To this Judge, there is no rigid standard or formula by which exposures to hazards can be determined. Each case must be decided on its own facts and circumstances.

Some of the factors to be considered in determining exposure are:

1. The distance from the hazard to an employee’s work area;

2. the work being performed by the employee;

3. the number of employees working in the area;

4. the housekeeping conditions, if any, in the work and hazard area; and

5. the activities and movements required by an employee in the performance of his work.

In the instant case, the only evidence presented is that two employees of Respondent were operating a power saw an estimated distance of ten feet from an unguarded open-sided floor. There is no evidence that the work of these employees required them to move any appreciable distance from their power saw to the hazard, or that the pathway to their work or supplies would bring them closer to the edge of the floor, or that the very nature of their work would expose them to the hazard. The evidence was insufficient to establish that poor housekeeping conditions would cause them to work or move closer to the hazard.

Under the facts and circumstances of this case, this Judge cannot find that these two employees were exposed to the hazard of an unguarded open-sided floor on the plaza first floor level.’

Judge Ditore’s decision is not only more manifestly just and reasonable than that of my colleagues, but it is also consistent with American jurisprudence, the purposes of the Act, the Commission’s Rules of Procedure and the Administrative Procedure Act.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3257
DIC-UNDERHILL, A JOINT VENTURE,
Respondent.

FINAL ORDER DATE: April 10, 1974

APPEARANCES:

Francis V. LaRuffa, Regional Solicitor U. S. Department of Labor 1515 Broadway, New York, New York Attorney for Complainant By: Louis D. DeBernardo, Esq. of Counsel

Norton, Sachs, Molineaux & Pastore 230 Park Avenue, New York, New York Attorneys for Respondent By: William J. Pastore, Esq. of Counsel

DECISION AND ORDER

Ditore, J.

PRELIMINARY STATEMENT

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), contesting a Citation issued by the Complainant against the Respondent under the authority vested in the Complainant by Section 9(a) of the Act.

The Citation alleged that as a result of the inspection of a workplace under the ownership, operation and control of the Respondent, located at 300 East 56th Street, New York, New York, and described as a construction site, the Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation,[4] issued May 9, 1973, alleged that the violations resulted from Respondent’s failure to comply with standards promulgated by the Secretary by publication in the Federal Register on December 16, 1972 (37 F.R. 27543 and 27509), and codified in 29 CFR 1926.500(d)(1) and 1926.25(a).

The descriptions in the Citation of the above standard violations, and the standards as promulgated by the Secretary are as follows:

Item 1 of Citation 29 CFR 1926.500(d)(1)

‘Failure to guard every open-sided floor or platform 6 feet or more above adjacent floor or ground level by a standard railing at the following locations:

(a) 1st, 2nd and 3rd floors on 55th Street side of building.

(b) 1st and 2nd floors on 56th Street side of building.’

Standard

‘(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toe board wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.’

Item 2 of Citation—29 CFR 1926.25(a)

‘Failure to keep all work areas cleared of scrap lumber with protruding nails, forms and other debris during the course of construction.’

Standard

‘(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways and stairs, in and around buildings or other structures.’

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated May 9, 1973, from Nicholas A. DiArchangel, Area Director of the New York City area, that the Occupational Safety and Health Administration, U. S. Department of Labor, proposed to assess a $210.00 penalty for the violation alleged in Item 1 of the Citation, and a $115.00 penalty for the violation alleged in Item 2 of the Citation.

After the proper pleadings were filed, a hearing was held on September 7, 1973, at New York, New York.

ISSUES

1. Whether 29 CFR 1926.500(a)(1) applies to Respondent’s workplace.

2. If the standard applies, whether Respondent was in violation of the standard.

3. If Respondent was in violation, whether the proposed penalty for the violation is reasonable.

4. Whether Respondent violated 29 CFR 1926.25(a).

5. If Respondent violated the standard, whether the proposed penalty for this violation is reasonable.

STATEMENT OF THE EVIDENCE

At the hearing, the parties stipulated that: the Respondent Underhill Construction Corporation was a New York corporation with a place of business at 212–02 41st Avenue, Bayside, New York; the Respondent Dic Concrete Corporation was a New York corporation with a place of business at 820 Elmont Road, Elmont, New York; Respondents trade as Dic-Underhill a Joint Venture, with a place of business at 212–02 41st Avenue, Bayside, New York; Respondents used cranes, trucks and mails which were manufactured outside the State of New York, and concrete which was manufactured in Norway; Respondents employed a daily average of employees in excess of one thousand; and Respondent Dic-Underhill was contesting only Items 1 and 2 of the Citation, and the respective penalties proposed for these items. (T. 8–9)[5]

COMPLAINANT’S CASE

On April 11, 1973, Daniel Marra, a Compliance Officer for the Occupational Safety and Health Administration, inspected Respondent’s worksite located at 300 East 56th Street, New York, New York. He was accompanied on his inspection by Respondent’s foreman, a Mr. Garfalo. (T. 10–11, 14, 16)

a. The Worksite

The worksite was an apartment building, located between 55th and 56th Streets, and First and Second Avenues, New York, New York, in its first stages of construction. (T. 18, 19)

The building was of concrete construction with a foundation. Work had progressed to the second floor of the structure. (T. 18) The first level above ground level was the plaza-first floor level. (See Exh. C–1, T. 2a; T. 24–25)

b. Officer Marra’s Observations on April 11, 1973

1. 29 CFR 1926.500(a)(1)

Officer Marra observed that the open-sided floor of the plaza-first floor area was completely unguarded. The drop from the open-sided floor on this level to the ground level was about 10 or 12 feet. (T. 20, 21) Exhibit C–1, a photograph taken by Officer Marra on April 11, 1973, depicts the plaza area in the foregound, and the first and second levels in the background. (T. 24, 26) Officer Marra further observed two of Respondent’s employees operating a power saw on the plaza area about ten feet from an unguarded open-sided floor on the 56th Street side of the building. (T. 30, 31, 35, 37, 90, 91)

On the second floor, Officer Marra observed that: the open-sided floor was completely unguarded; about fifty of Respondent’s employees were working on this level pouring concrete; the drop from the second floor to ground level on the 56th Street side was about 22 feet, and from the 55th Street side about 10 to 12 feet; and none of Respondent’s employees were wearing any safety equipment. (T. 19, 21, 22, 23, 24, 27, 28, 29, 30, 38, 39, 40–45, 47; Exhs. C–1, C–2)

Officer Marra stated that Respondent’s employees, after his inspection on April 11, 1973, were removed from the job site, and did not return to work until the morning of April 13, 1973, when perimeter guards had been installed. (T. 51–53) During that period of time, no employee of Respondent was exposed to the hazard of unguarded open-sided floors. (T. 51, 102–103)

The violation of 29 CFR 1926.500(d)(1) was deemed serious in that an accident due to the violation would probably result in serious or fatal injury to an employee. (T. 62) Based on the gravity of the violation an unadjusted penalty of $420.00 was set which was reduced by a 50% abatement credit to a proposed penalty of $210.00. (T. 62) No credit was given for size as Respondent employed in excess of 99 employees at the worksite. (T. 61) No credit was given for good faith and prior history as Respondent had been cited for similar violations on prior occasions at different worksites. (T. 60, 61–62)

2. 29 CFR 1926.25(a)—Housekeeping

Officer Marra during his walk-around on the plaza-first floor level, observed lumber, some with nails, and debris strewn all over this area. He found no clear aisle space, and had ‘to pick’ his way through the lumber and debris to avoid tripping or stumbling. This housekeeping condition existed during Officer Marra’s three day inspection. (T. 48 49, 50; Exh. C–1, Plaza area)

Officer Marra further stated that Respondent’s employees had to cross this plaza area to reach the second floor (T. 51); and that two of Respondent’s carpenter-employees had to walk through the debris and lumber to reach the power saw they were working on the plaza level. (T. 58)

The hazard involved tripping over debris and lumber. (T. 63) An unadjusted penalty of $320.00 based on the gravity of the violation was reduced 50% for abatement to a proposed penalty of $215.00. No credit was given for size, prior history or good faith. (T. 63)

RESPONDENT’S CASE

Respondent presented no witnesses nor any other evidence on its behalf, but rested at the end of Complainant’s case. (T. 103–104)

Respondent’s cross-examination of Complainant’s witness was directed exclusively to the housekeeping violation, and to the number, if any, and locations of Respondent’s employees on the plaza-first floor level. (T. 69–92)

Respondent in its post-hearing brief, raises a legal defense based on the inapplicability of standard 29 CFR 1926.500(d)(1) to the work it was performing at the job site on April 11, 1973. (Brief, pp. 3–7)

OPINION

Respondent was cited for a violation of 29 CFR 1926.500(d)(1). This standard as promulgated provides in pertinent part as follows:

‘(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. . . .’

The description of this violation in the Citation (item 1) states:

‘Failure to guard every open-sided floor or platform 6 feet or more above adjacent floor or ground level by a standard railing at the following locations.

a) 1st, 2nd and 3rd floor on 55th Street side of building.[6]

b) 1st and 2nd floors on 56th Street side of building.

The evidence, unrefuted, establishes that the open-sided first and second floors on the 55th and 56th Street sides of the building were completely unguarded; and that the drop to ground level was greater than six feet. The evidence further establishes that on April 11, 1973, Respondent had a large number of employees on the second floor exposed to this hazard, and had two employees on the plaza—first floor area about ten feet from an unguarded open-sided floor on the 56th Street side.

Respondent does not refute the above facts but raises the legal defense that 29 CFR 1926.500(d)(1) is not applicable to the work it was performing at the job site. (Brief, pp. 3–7) If Respondent’s legal contention is correct, the Citation and proposed penalty for a violation of 29 CFR 1926.500(d)(1) must be vacated.

It is Respondent’s position that it was engaged in structural concrete construction work; and that this work is specifically covered by Subpart Q of 29 CFR Part 1926 and the specific standards therein. Therefore the general standard 29 CFR 1926.500(d)(1) found in Subpart M is not applicable. (Brief pp. 3–7)

Respondent states that Subpart Q sets forth standards which are applicable to all equipment and materials used in concrete construction work, and provides a standard to protect concrete construction employees placing and tying reinforcing steel. Respondent reasons that since Subpart Q provides protection for some concrete construction employees working at heights (29 CFR 1926.700(b)) but not for protection against unguarded floor perimeters, it follows that no safety protection in the form of perimeter guarding was deemed necessary. Therefore Subpart Q required no perimeter protection for employees who were performing, as were Respondent’s employees, concrete forming and stripping work. (Brief, pp. 3–7)

Complainant replies that Subpart Q does not have a specific standard for perimeter guarding. Therefore the rule of 29 CFR 1910.5(c)(2) requires that general standard 29 CFR 1926.500(d)(1) for perimeter guarding must apply. (Complainant’s Brief, Point II)

Respondent counters in its supplementary brief that Complainant’s argument must fall because 29 CFR 1926.500(d)(1) is a general standard which must give way to specific standard, 29 CFR 1926.701(a). Further 29 CFR 1910.5(c)(2) is not controlling because that section requires that ‘none’ of the specific standards apply whereas Subpart Q does have ‘some’ specific provision for perimeter protection. (Supp. Brief, pp. 1–3)

29 CFR 1910.5(c)(2) provides:

‘. . ., any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are prescribed for the industry, as in Subpart B [Section 1910.12(a) Construction] or Subpart R of this part [special industries], to the extent that none of such particular standards applies. To illustrate, the general standard regarding noise exposure in Section 1910.95 applies to employments and places of employment in pulp, paper and paper board mills covered by Section 1910.261.’

It is clear from the above section that the safety and health standards found in 29 CFR part 1926 are particular standards applicable to the construction industry as a whole. There are occasions when these specific standards do not cover or give protection to construction employees engaged in certain specialties of work. Where these instances occur other specific standards are set forth to cover the work being performing. To illustrate, 29 CFR 1926.500(d)(1) dealing with perimeter floor guarding in the construction industry does not afford protection to concrete construction employees working 6 or more feet above any adjacent working surface, placing and typing reinforcing steel in walls, piers, columns, etc. To protect the employees working in this specialty, 29 CFR 1926.700(b)(i) requires that these employees use safety belts or equivalent devices. In steel construction work where there is temporary flooring in a skeleton steel building, a special type of perimeter guarding is required (29 CFR 1926.750(b)(iii)).

These specialty safety standards promulgated to protect a class of construction employees, not otherwise protected, do not by inference, logic or context, defeat the application of other specific construction standards to protect construction workers not engaged in a specialty category of construction work.

29 CFR 1926.500(d)(1) applies to Respondent. Its employees, performing concrete construction work on the second floor of the building were not protected from the hazard of unguarded open-sided floors. (See also Secretary of Labor v. James L. Brussa, Masonry, OSAHRC Docket No. 725).

Respondent further contends in Point III of its brief (pp. 8–9), that Complainant failed to establish that perimeter guards could be installed on the second floor, and if installed, that Respondent could perform its concrete pouring work.

It is not Complainant’s burden to establish that perimeter guards could not be installed, or that such guards would prevent Respondent’s work from progressing. This is a defense available to Respondent which it neither offered nor established at the hearing.

The record reflects that Respondent’s employees left their worksite on the second floor some time after Officer Marra’s inspection on April 11, 1973. These employees returned to their work on the morning of April 13, 1973, after the perimeter guard violation was corrected. The inference is clear. Not only were perimeter guards installed but their installation did not prevent Respondent with continuing its work on the second floor.

The question remains whether Respondent’s two employees on the plaza-first floor level were exposed to an unguarded open-sided floor hazard.

Officer Marra stated that he observed two of Respondent’s employees operating a power saw on this level about ten feet from an unguarded open-sided floor.

Respondent contends that its two employees were no closer to the edge than ten feet, and that there was no evidence which indicated their work would bring them closer to the edge. Therefore, Complainant failed to establish that these two employees were exposed to any hazard. (Brief pp. 7–8)

When is an employee exposed to any given hazard is always a difficult question, and cannot be determined with any degree of precision. There are no devices or instruments which will indicate that an employee ten or more feet from a hazard is exposed to that hazard. An employee working at the edge or within two to five feet of an unguarded open-sided floor would no doubt be exposed to that hazard. But what is the outermost distance limits beyond which exposure no longer exists? To this Judge, there is no rigid standard or formula by which exposures to hazards can be determined. Each case must be decided on its own facts and circumstances.

Some of the factors to be considered in determining exposure are:

1. The distance from the hazard to an employee’s work area;

2. the work being performed by the employee;

3. the number of employees working in the area;

4. the housekeeping conditions, if any, in the work and hazard area; and

5. the activities and movements required by an employee in the performance of his work.

Under the facts and circumstances of this case, this Judge cannot find that these two employees were exposed to the hazard of an unguarded open-sided floor on the plaza-first floor level.

Respondent was in violation of 29 CFR 1926.500(d)(1) in that it exposed its employees on the second floor of the construction site to the hazard of unguarded open-sided floors.

Complainant classified this violation as nonserious and proposed a penalty of $210.00. The gravity of the violation is high. An accident to an employee because of the violation would probably result in a serious or fatal injury. Complainant’s denial of credit for prior history and good faith on the ground that Respondent had prior contested but unresolved similar violations, is rejected. To permit such consideration to enter into the determination of a penalty would, in essence, penalize a Respondent for seeking in good faith to challenge prior but unresolved, ?? to final order, charges of similar violations. Based on the gravity of the violation, Respondent’s size, prior history and good faith, a penalty of $200.00 is assessed.

29 CFR 1926.25(a)—Housekeeping

The evidence established that lumber (some with nails) and debris (unspecified) was scattered and strewn in such quantity over the plaza-first floor level that Officer Marra in his inspection, had to proceed with caution to avoid tripping or stumbling. Officer Marra’s unrefuted testimony establishes that Respondent’s employees had to use the plaza area to reach the second floor of the building.

There was no evidence that Respondent’s employees could reach the second floor by means other than crossing the plaza area.

Although Respondent’s employees left the job site on April 11, 1973, the poor housekeeping conditions remained when they returned on April 13, 1973.

29 CFR 1926.25(a) requires that all form and scrap lumber with protruding nails, and all other debris be kept clear from work areas, passageways, and stairs in and around buildings or other structures. Respondent was in violation of this standard.

The hazard was the possibility of an employee tripping over the lumber and debris on his way to his work area. In view of the number of Respondent’s employees, about 50, using this plaza area to reach their second floor worksite, the lack of any precautions taken against this hazard, and an average probability of an injury occurring, the gravity of the violation is deemed to be about average. Complainant proposes a penalty of $115.00 which includes a 50% credit for abatement. No credit was given for size. No credit was given for good faith and prior history on the grounds, stated previously, that there were outstanding but contested and unresolved prior citations for similar violations. No credit is here given for size. Credit is given for good faith and prior history for the reasons stated above in determining the penalty for the violation of 29 CFR 1926.500(d)(1). The proposed penalty of $115.00 is reduced to $45.00 to reflect credits for good faith and no prior history.

FINDINGS OF FACT

The credible evidence, and the record as a whole established substantial proof of the following specific findings of fact.

1. Respondent Underhill Construction Corporation, is a New York Corporation with a place of business at 212–02 41st Avenue, Bayside, New York. (T. 8)

2. Respondent Dic Concrete Corporation, is a New York Corporation with a place of business at 820 Elmont Road, Elmont, New York. (T. 8)

3. Respondent trade as Dic-Underhill, a Joint Venture, and maintain a place of business at 212–02 41st Avenue, Bayside, New York. (T. 8)

4. Respondents use trucks, cranes, nails and concrete manufactured outside the State of New York. (T. 8–9)

5. Respondents employ in excess of one thousand employees on a daily average. (T. 8)

6. On May 9, 1973, Respondent was issued a Citation for four nonserious violations, and a Notification of Proposed Penalty for each of the violations. The violations allegedly existed at Respondent’s workplace, an apartment construction site at 300 East 56th Street, New York, New York, on April 11, 1973. (Citation and Notification)

7. Respondent timely contested items 1 and 2 of the Citation which allege violations of 29 CFR 1926.500(d)(1), and 29 CFR 1926.25(a), and the penalties proposed for these violations. (T. 9)

The Worksite

8. On April 11, 1973, Respondent’s worksite was an apartment building in its first stages of construction. (T. 18, 19)

9. The building structure being erected was on concrete construction with a foundation, a plaza-first floor level, and a second floor at the stage of having a concrete floor poured. (T. 8, 24–25; Exhs. C–1, C–2)

Standard 29 CFR 1926.500(d)(1)—Open-sided floor protection

10. The open-sided floors on the plaza-first floor level and on the second floor level were completely unguarded. (T. 20, 21, 22; Exh. C–2)

11. The drop from the open-sided floor on the plaza-first floor level to ground level was greater than six feet. The drop from the open-sided floor on the second floor level to ground level varied from ten to twelve feet on the 55th Street side to twenty-two feet on the 56th Street side. (T. 21–22)

12. Standard 29 CFR 1926.500(d)(1) requires all open-sided floors six or more feet above an adjacent level to be guarded as prescribed by the standard.

Respondent’s employees at the Worksite

13. Respondent had two employees operating a power saw on the plaza-first floor level. These employees were about ten feet from an unguarded open-sided floor on the 56th Street side of the plaza-first floor level. (T. 30, 31, 35, 37, 90, 91)

14. Respondent had close to fifty employees working on the second floor level pouring concrete. A number of these employees were working close to the edge of the unguarded open-sided floor on this level. (T. 19, 21–24, 27–30, 38, 39, 40–45, 47; Exhs. C–1, C–2)

15. On April 11, 1973, after the Compliance Officer’s inspection, Respondent removed its employees from the worksite. These employees returned to work on the morning of April 13, 1973, after the open-sided floors were properly guarded. (T. 51, 102–103)

16. The employees working on the second floor of the construction site on April 11, 1973, were exposed to the hazard of falling from the unguarded open-sided floor on this level to ground level, a distance from ten to twenty-two feet. If such an accident occurred, an employee probably would have suffered a serious or fatal injury.

17. The two employees operating a power saw about ten feet from an unguarded open-sided floor on the plaza-first floor level, on April 11, 1973, were not by distance, nature of their work, or other factors exposed to this hazard. (See, Opinion)

Standard 29 CFR 1926.25(a)—Housekeeping conditions.

18. The plaza-first floor level was strewn with lumber (some with nails) and other debris to an extent and in such quantity that it was necessary for anyone using this area to proceed cautiously to avoid tripping or stumbling. There were no clear passageways or aisle space on this level. (T. 48, 49, 50; Exh. C–1)

19. The evidence, unrefuted, established that Respondent’s employees working on the plaza-first floor level, and the second floor level had to traverse the plaza area to reach their worksites. (T. 51, 58)

20. The hazard to these employees from the poor housekeeping conditions was the possibility of tripping over lumber and debris, with probable injury in case of a fall.

21. Respondent presented no evidence on its own behalf at the hearing, and rested at the conclusion of the Complainant’s case. (T. 103–104)

22. Based on the statutory factors set forth in Section 17(j) of the Act, a penalty of $200.00, is assessed for the violation of 29 CFR 1926.500(d)(1), and a penalty of $45.00 for the violation of 29 CFR 1926.25(a). (See, Opinion)

CONCLUSIONS OF LAM

1. The Respondent Dic-Underhill, a Joint Venture, is, and at all times relevant herein, was engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter of this action.

3. Standard 29 CFR 1926.500(d)(1) of Subpart M of the Construction standards applied to Respondent and its employees at Respondent’s workplace on April 11, 1973.

4. Respondent, on April 11, 1973, was in violation of 29 CFR 1926.500(d)(1), on the second floor level of the construction site.

5. Based on the statutory factors set forth in Section 17(j) of the Act, a penalty of $200.00 is assessed.

6. Respondent, on April 11, and April 13, 1973, was in violation of 29 CFR 1926.25(a) on the plaza level of the construction site.

7. The proposed penalty of $115.00 for the violation of 29 CFR 1926.25(a) is not accepted as reasonable. Based on the statutory factors of Section 17(j) of the Act, a $45.00 penalty is assessed.

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the Citation (item 1) issued on May 9, 1973, for a violation of 29 CFR 1926.500(d)(1) is modified to reflect a violation of this standard only on the second floor level of the worksite, and as modified, is affirmed, it is further

ORDERED that a penalty of $200.00 is assessed for the violation of 29 CFR 1926.500(d)(1), it is further

ORDERED that the Citation (item 2) issued May 9, 1973, for a violation of 29 CFR 1926.25(a), is affirmed, it is further

ORDERED that the proposed penalty of $115.00 for the violation of 29 CFR 1926.25(a) is vacated, and a $45.00 penalty assessed.

JEROME C. DITORE

JUDGE, OSAHRC

Dated: March 11, 1974

New York, New York

[1] That standard reads:

§ 1926.500 Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toe-board wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

[2] That standard reads:

§ 1926.25 Housekeeping.

(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

[3] Eighteen months ago I proposed (by circulation of a proposed decision to both of the other members of the Commission) that this case should be disposed of by a simple affirmance of the Judge’s decision without comment. Since the Judge affirmed the violation because of the conditions on the second floor, his holding as to the first floor is insignificant. The complainant proposed a penalty of $210.00, the Judge assessed a $200.00 penalty, and the Commission has affirmed the Judge’s penalty assessment. The violation should have been affirmed long ago because the respondent could not be required to abate the conditions until the Commission issues a final order. 29 U.S.C. § 659(b). At this late date, the work on the building in issue has undoubtedly been completed.

[4] The Citation alleged four violations, itemized 1 to 4. Respondent contested only item 1 and item 2 and the proposed penalties for these items. The remaining two violations and the penalties proposed are not here in issue. (T. 9)

[5] Reference key: T. refers to pages of minutes of hearing transcript.

[6] Complainant at the opening of the hearing amended this description by deleting reference to 3rd floor from paragraph (a). (T. 6–7)